By GARRY RAYNO, InDepthNH.org
CONCORD — In a three-to-two decision Wednesday, the state Supreme Court echoed a US Supreme Court decision that determining what is extreme gerrymandering is outside the judicial branch to resolve without constitutional standards or guidance.
A group of Democratic voters challenged the Executive Council and State Senate redistricting plans saying they violated a number of provisions in the state constitution, such as the guarantee of free and equal elections, equal protection and free speech and association rights.
The majority of the court, however, sided with the state, saying the constitution gives the legislature the authority to redraw political boundaries and without standards or guidelines to determine what is extreme gerrymandering.
But the minority of the court said for the first time its history “this court has declined to exercise jurisdiction over alleged constitutional violations on the ground that it cannot discern manageable standards for resolving them in the text of the constitution, or, in Justice Kagan’s words, ‘because it thinks the task beyond judicial capabilities.’”
“This case is about whether the plaintiffs can have their day in court,” wrote justices Gary Hicks and James Bassett in their dissent. “Our colleagues have ruled that they cannot.”
They contend the court should use the same standard of review to determine extreme gerrymandering as is used in finding districts gerrymandered to dilute the voting power of racial minorities.
The plaintiffs had asked for the court to stop the use of the districts in upcoming elections, and to redraw the political boundaries in a more representative manner.
Attorney General John Formella was pleased with the court’s decision.
“We are pleased that the Court agreed with our arguments and held that partisan redistricting claims present non-justiciable political questions,” said Formella in a statement. “This opinion means that in New Hampshire, partisan and political questions related to redistricting will continue to be placed where they belong: in the hands of the people’s elected representatives.”
Gov. Chris Sununu said he doesn’t believe either the executive council or state senate have been gerrymandered.
“I don’t see anything that needs to be done. I think you have real serious gerrymandering issues in other parts of the country . I don’t think we have them here. I know we don’t have them here. I am actually very proud that, in fact I am the only governor in the country that never signed one of the legislative bills on redistricting because I just was not going to allow this process to be gerrymandered, specifically around the congressional districts,” he said during a press briefing in his office Wednesday.
“So I have always said gerrymandering is a horrible problem across America because it is one of those problems where the genie is out of the bottle. It is really hard to undo it, Sununu said.”
But attorney Paul Twomey, who helped argue the case, called it very disappointing.
The decision “will perpetuate a situation where the minority will always have control over the majority,” Twomey said. “I don’t know what that is, but it is not democracy. It’s shameful.”
The Executive Council districts drawn during redistricting in 2022, gave Republicans a four-to-one advantage, although the votes for Democratic candidates outnumbered Republican votes 303,238 to 301,743.
The Senate redistricting plan produced a 14-10 Republican majority in the State Senate while votes for Democratic candidates outnumber votes for Republicans 299,327 to 293,304.
A superior court judge had dismissed the plaintiffs case saying the state constitution clearly gives the authority to redraw the state’s political boundaries to the Legislature, and “the only justiciable issues it can address concerning senate and executive council redistricting are whether the newly enacted districts meet the express requirements of [Part II,] Articles 26 and 65,” and ruled they did.
The plaintiffs appealed saying the lower court decision contained fundamental errors concerning the political question doctrine related to the separation of powers, ignored other constitutional rights that the gerrymandered plans violate, and the constitutional violations require judicial intervention.
But the state contended redistricting powers are vested in the legislature and the constitution “does not contain any mandatory requirements or ‘constitutional guideposts’ requiring the Legislature to take, or prohibiting it from taking, political considerations into account during the reapportionment process.”
The state also argued the constitution does not provide discoverable and manageable standards for judicial intervention.
In writing the majority opinion, justice Patrick Donovan writes that the constitutional issues raised by the plaintiffs “neither expressly address partisan gerrymandering nor articulate discernible and manageable standards for adjudicating claims related to partisan gerrymandering.”
“Furthermore, unlike other states that have codified limits on partisan gerrymandering or amended their state constitutions to limit or prohibit partisan favoritism in redistricting, New Hampshire has not done so,” Donovan writes.
He quotes from the US Supreme Court’s Rucho decision “that nothing in the Federal Constitution mandates outright proportional representation, and, therefore, ‘plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.’ Thus, partisan gerrymandering claims essentially ask courts to ‘apportion political power as a matter of fairness.’”
They argued the plaintiffs have failed to articulate any standard that can be used to determine extreme partisan gerrymandering.
“The plaintiffs have failed to identify any express mandatory constitutional provision or state statute addressing partisan gerrymandering in New Hampshire,” Donovan writes. “Further, we are not persuaded that a discernible standard for adjudicating partisan-gerrymandering claims exists.”
But Hicks and Bassett disagree with the majority that the case is a nonjusticiable political question absent standards.
“The majority concludes, however, that the plaintiffs’ claims raise a nonjusticiable political question because of the lack of a discernible and manageable standard in the text of the constitutional provisions upon which the plaintiffs rely,” Hicks and Bassett write. “We have never before declined to decide a constitutional question on this ground and should not do so now.”
In their dissenting opinion, the justices argue partisan gerrymandering can be determined in a manner similar to racial gerrymandering, which the US Supreme Court has found in numerous cases.
“The Supreme Court found racial gerrymandering claims justiciable two years before adopting the one-person, one-vote standard to measure the burden that districts without equal population have on representational rights,” they write.
In the current case, they argue the plaintiffs raise both vote dilution and sorting claims used to determine racial gerrymandering.
The plaintiffs allege that the partisan gerrymandering in this case had a discriminatory intent to artificially advantage Republicans over Democrats and diminish the voting strength of the plaintiffs, who are registered Democrats.
They note that even with more than half of the statewide electorate voting for Democratic candidates, Republicans can still obtain control of both the Senate and Executive Council with large margins.
The justices side with the plaintiffs’ claim that the redistricting plans for the state senate and executive council intentionally employ irregularly-shaped districts and disregard or subordinate neutral redistricting criteria in order to entrench Republican control of those bodies.
They argue the supreme court decided to intervene in a challenge to House rules brought by Rep. John Burt, R-Goffstown, claiming the rule violated his second amendment rights to possess a firearm, but not in this case for voting rights, which Hicks and Bassett earlier quote from a decision as the most precious of rights in a democracy.
They cite decisions in other states with similar constitutional language that have ruled against extreme partisan gerrymandering, and say the standards and guidelines could be established in a superior court case here in the future.
“When, as in this case, the plaintiffs allege that their votes have been intentionally diluted so as to entrench a party in power — a claim which, if true, constitutes a clear, direct, irrefutable violation of Part I, Article 11’s guarantee of a free and equal election — we must adjudicate that claim,” Hicks and Bassett write.
The plaintiffs can ask the court to reconsider its decision, but that is unlikely.
“It is what it is,” Twomey said. “The case itself is dead. It’s very disappointing.”
He said one remedy would be a constitutional amendment prohibiting partisan gerrymandering so the people could decide who would represent them.
With Republicans in control of the House and Senate, that is unlikely to pass.
During the 2019-2020 session, the House and Senate with bipartisan support approved an independent redistricting commission, twice and sent the bill to Gov. Chris Sununu’s desk, but he vetoed it both times and the legislature failed to overturn the vetoes.
Garry Rayno may be reached at firstname.lastname@example.org.
Reporter Paula Tracy contributed to this story.